Proposed IP Reforms to aid Academia

The Gowers Review of Intellectual Property which was published at the end of 2006 made a number of recommendations for the reform of IP protection in the UK. This was followed by a round of consultations regarding a variety of recommendations relating to copyright exceptions. In the light of the responses received the government has proposed legislative changes on which comment is now invited. Comments on the proposals should be sent to copyrightconsultation@IPO.gov.uk by 31 March 2010. The government’s intention is then to have legislation in place by the end of this year.

The proposals can be read in full at http://www.ipo.gov.uk/consult-gowers2.htm but in short cover the following matters:

1 – that the educational exceptions that currently permit the production of class “handouts” and the recording and rebroadcasting of material to students on site should be extended, subject to appropriate security being put in place, to meet the needs of developing technologies in teaching in particular the use of distance learning and interactive whiteboards. Notwithstanding active lobbying by museums and galleries this extension will not be extended to them. Further input from interested parties is invited in particular on the question of “on-demand” material. It is proposed also to extend the exception relating to small excerpts to standard film recordings but not to broadcasts or artistic works. Current licensing rules and the 1% limit will remain.

2 – that the research and private study exemption should be extended to cover all forms of content including sound recordings, films and broadcasts. It should be noted however that “private study” is severely restricted and the extension will only apply to people who are undertaking a course of study or research at an accredited educational establishment. This will come as a disappointment to local history societies and other proponents of life long learning, although the current rules for literary, dramatic, musical and artistic works will remain applicable to amateur researchers as now.

3 – An important proposal in relation to unpublished and rare works will see libraries and archivists authorised to make copies of unpublished works to allow research to take place while limiting potential damage to these rare works and also to make copies of items in their collection and preservation purposes. This last proposal will also allow copies are to be kept in alternative formats. The importance of collections held by museums and galleries is to be recognised with the preservation exception extended to their collections too.

4 – a new exception for pastiche was considered but the government has been persuaded by the rights holders that this would be unnecessary given the lively tradition of parody in the UK and the potential for financial and reputational damage to the rights holders. A factor in the government’s decision seems to have been the very few respondents who expressed an interest in this proposal. This may of course be because those potentially involved in creating pastiches are individuals or very small businesses who may have been unaware of the situation or were generally less likely to comment. Some European countries do have a parody exception and I know from artists among my own clients that the absence of clear rules in the UK does have a chilling effect on their creativity.

5 – the facilitation of access to orphan works and broader issues relating to format shifting are the subject of separate discussions.